Neil v. City of New York

Appellate Division of the Supreme Court of New York

Neil v. City of New York

227 A.D.2d 260, 642 N.Y.S.2d 661, 1996 N.Y. App. Div. LEXIS 5396

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 21, 1996

StatusPublished

Cited by2 cases

This text of 227 A.D.2d 260 (Neil v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Neil v. City of New York, 227 A.D.2d 260, 642 N.Y.S.2d 661, 1996 N.Y. App. Div. LEXIS 5396 (N.Y. Ct. App. 1996).

Pincite

Opinion

Order, Supreme Court, New York County (Walter Tolub, J.), entered November 10, 1994, which granted defendant Nemeth’s motion for summary judgment dismissing the complaint and all cross-claims against him, unanimously affirmed, without costs.

In this slip and fall personal injury action, the IAS Court properly granted summary judgment dismissing the complaint against defendant, who had contracted with plaintiff’s employer to provide interior design services.

"To limit an open-ended range of tort duty arising out of contractual breaches, injured noncontracting parties must show that the 'performance of contractual obligation [between others] has induced detrimental reliance [by them] on continued performance and inaction would result not "merely in withholding a benefit, but positively or actively in working an injury” ’ (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226, supra, citing Mock Co. v Rensselaer Water Co., [261]*261247 NY 160, 167, supra). The nexus for a tort relationship between the defendant’s contractual obligation and the injured noncontracting plaintiffs reliance and injury must be direct and demonstrable, not incidental or merely collateral [citations omitted].” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 587.)

Here, there was no showing whatever of plaintiffs detrimental reliance on defendant’s continued performance. Defendant’s performance was completed prior to plaintiffs presence as an employee at the restaurant where the alleged accident occurred. Thus, the facts are distinguishable from those in Palka v Servicemaster Mgt. Servs. Corp. (supra), where the defendant contracted to supervise a preventative maintenance program which particularly included the inspection and repair of the wall-mounted fans, one of which fell and injured the plaintiff (supra, at 584). Nor was there evidence that defendant’s actions had " 'launched a force or instrument of harm’ ” (Bourk v National Cleaning, 174 AD2d 827, 828, lv denied 78 NY2d 858).

We have considered plaintiffs other contentions and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Rubin and Nardelli, JJ.

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Order, Supreme Court, New York County (Walter Tolub, J.), entered November 10, 1994, which granted defendant Nemeth’s motion for summary judgment dismissing the complaint and all cross-claims against him, unanimously affirmed, without costs.

In this slip and fall personal injury action, the IAS Court properly granted summary judgment dismissing the complaint against defendant, who had contracted with plaintiff’s employer to provide interior design services.

"To limit an open-ended range of tort duty arising out of contractual breaches, injured noncontracting parties must show that the 'performance of contractual obligation [between others] has induced detrimental reliance [by them] on continued performance and inaction would result not "merely in withholding a benefit, but positively or actively in working an injury” ’ (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226, supra, citing Mock Co. v Rensselaer Water Co., [261]*261247 NY 160, 167, supra). The nexus for a tort relationship between the defendant’s contractual obligation and the injured noncontracting plaintiffs reliance and injury must be direct and demonstrable, not incidental or merely collateral [citations omitted].” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 587.)

Here, there was no showing whatever of plaintiffs detrimental reliance on defendant’s continued performance. Defendant’s performance was completed prior to plaintiffs presence as an employee at the restaurant where the alleged accident occurred. Thus, the facts are distinguishable from those in Palka v Servicemaster Mgt. Servs. Corp. (supra), where the defendant contracted to supervise a preventative maintenance program which particularly included the inspection and repair of the wall-mounted fans, one of which fell and injured the plaintiff (supra, at 584). Nor was there evidence that defendant’s actions had " 'launched a force or instrument of harm’ ” (Bourk v National Cleaning, 174 AD2d 827, 828, lv denied 78 NY2d 858).

We have considered plaintiffs other contentions and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Rubin and Nardelli, JJ.

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Bluebook (online)

227 A.D.2d 260, 642 N.Y.S.2d 661, 1996 N.Y. App. Div. LEXIS 5396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neil-v-city-of-new-york-nyappdiv-1996.

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